New Delhi: The Supreme Court on Thursday asked the Centre whether social welfare benefits can be granted to same-sex couples without going into legalising their marriage.
The court posed the question after observing that the Centre’s acceptance of right to cohabitation of same sex partners as a fundamental right cast a “corresponding duty” on it to recognise its social consequences. “You may or may not call it marriage but some label is necessary.”
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud, hearing a batch of pleas seeking legal validation of same-sex marriage, took note of the submissions of the Centre, represented by Solicitor General Tushar Mehta, that “right to love, right to cohabit, right to choose one’s partner, right to choose one’s sexual orientation” is a fundamental right.
“But there is no fundamental right to seek recognition of that relationship as marriage or in any other name,” the top law officer told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
Mehta said there was no fundamental right to get all types of social relationships like marriage recognised.
“There is no positive obligation on the state to recognise all personal relationships. There are a large number of relationships in the society and all need not be recognised.”
The bench responded to say, “Let us go step by step.”
“Once you recognise that there is a right to cohabit. In other words, a homosexual relationship is not really one off incident in the life of a person. That may also be symptomatic of a person to stay in emotional and social relationships.
“Once you recognise that the right to cohabit itself is a fundamental right … then there is corresponding duty on the State to at least recognise that the social incidents of that cohabitation must find a recognition in law. We are not going to marriage at all at this stage,” it said.
The bench referred to the consequential problems such as nomination of heirs in gratuity, provident funds, succession and parenting in schools, and said that various ministries of the government can ponder over these issues and apprise the court about the steps which can be taken to redress them.
“From that point of view we would be more than willing to have the government make a statement before us that because you have ministries dedicated for this purpose, the Ministry of Social Justice and Empowerment… Ministry of Women and Child development etc.”
Noting that there were so many issues on the administrative side, the bench said the government can find real solutions and the top court can act as “facilitators” to achieve them.
“Short of that, the law has gone so far now.. the government should ensure that these cohabiting relationships must be recognised in terms of creating conditions of security, social welfare, and to ensure, by doing that, you also ensure for the future that such relationships are not ostracised in the society.”
The bench, however, said it understood its limitations as a court but many issues can be dealt with by the government in the administrative side.
“We take your point that the courts cannot go into the legislative arena. That you will be legislating and that this is not your remit. This is for Parliament and for the state legislature,” the bench said, adding that actions may be taken to deal with problems of same sex partners by the government in administrative side.
“The relationship of the court with the government in that sense is not really adversarial. Especially on socio-economic matters we are pushing the government and asking they come on, come back,” it said.
The court may not have a model within it and it may not be appropriate for it to devise that model, the bench added.
“But we can certainly tell the government that look the law has now gone so far recognising such relationships. Should we not ensure that there is certain degree of recognition.”
It termed that the issues relating to same-sex marriages are “much more difficult” than the Vishakha case which dealt with sexual harassment at work place, and said “because we don’t have one silo and these have linkages everywhere such as adoption, maintenance, succession everything”.
On the sixth day of hearing, the bench told the Centre that same-sex persons, despite their relationship being recognised, cannot come to the government seeking redressal of their grievances and said “there is an element of duty on the state as a welfare, democratic state. There are aspirations of the people that there will be some recognition somewhere.”
Referring to various problems being faced by same-sex couples, the bench asked, “can they not have joint bank accounts” and said that presently, it was not taking the issue to the level of marriage recognition.
“I don’t think there is an issue with that… I thought this should come from you (the government). Because we want some element of a broad sense of coalition. Because we are also conscious of the fact that there is much this representative democracy can achieve in our country. We will be happy to get that kind of assistance,” the CJI said.
The bench said there was no bar in adopting a child by one of the partners of the same-sex relationship.
“Now in such a situation, if a child goes to school, does the government want a situation where the child is essentially treated as a single parent child…So we don’t have to go for all or broke approach. At least at this stage of development of our social ethos, does the child should not have the benefit of co-habitation of two people in whose home the child resides.”
This is more a sociological problem, the law officer said, adding these are hypothetical situations.
“These are real life situations,” the bench countered.
The bench said it was the impact of British Victorian morality which led to forsaking of Indian cultural ethos and a situation where homosexuality became such a big problematic issue.
“You got some of our finest temples and see what reflects in their architecture… We imposed as it were a code of British Victorian morality on a completely different culture. Our culture was extraordinarily inclusive and broad which is possibly one of the reasons, why our religion survived even after foreign invasions. It happened because of the inclusions, tolerance and the great and profound nature,” the bench said.
It also referred to old Privy Council principle which said that long cohabitation itself raises the presumption of marriage.
The bench said that the lesbians and gay couples have been “very badly stigmatised”.
The law officer said that he will take up the issues with the appropriate level and get back to the court on May 3, the next date of hearing.
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